Defendant Claims Evidence was Illegally Obtained

A police officer, a nine-year veteran of the NYPD who has made 500 narcotics-related arrests, investigates drug sales in lower Manhattan. On February 28, 2010, the police officer, together with his detective partner entered the New York City Housing Authority (NYCHA) building in Manhattan to conduct a “vertical” –a floor-by-floor patrol of the premises in order to search for loiterers, drug users, people consuming alcohol and trespassers.

A New York Criminal Lawyer said the Officer testified that, in housing projects, officers may question anyone they encounter to determine whether they are on premises lawfully. Sometimes, at his discretion, he requires residents to provide identification or a key and must prove that they are not trespassers. Likewise, persons claiming to be legitimate visitors must also supply corroboration.

A New York Criminal Lawyer said the police officer testified that he entered the premises at around 6:30 p.m. and observed defendant standing alone in the lobby. Thereafter, he approached the defendant and asked whether he resided in the building. Defendant replied that he was visiting a friend. When defendant did not supply a name and apartment number, the police officer arrested him for trespassing on NYCA premises. The detective searched the defendant and recovered 29 ziplock bags of cocaine from his waistband. The police officer performed a search and found $284 on defendant’s person. Thereafter, defendant was charged with criminal cocaine possession and trespassing.

The issue here is whether defendant is entitled to the suppression of evidence obtained against him that was used in charging him with drug possession and trespassing on the ground that such evidence are the fruit of an officer’s unlawful approach and questioning.

The Court, in deciding the case insofar as to answer the question on the validity of the actuation of the police officers in questioning the defendant who is merely standing in the lobby of NYCHA cited a Court of Appeals ruling explaining a four-tiered, common-law analysis of police-civilian encounters being observed in Criminal law.

Level one or a “request for information” allows an officer to approach an individual and inquire about basic, nonthreatening matters such as name, address and destination. The police must have a reasonable belief for the questioning, but the reason need not be indicative of criminality.

In a level two contact, a “police officer’s questions become extended and accusatory and the officer’s inquiry focuses on the possible criminality of the person approached.” This level is more intrusive than a simple request for information but short of an actual seizure is known as the “common law right to inquire” and requires that an officer have a “founded suspicion that criminal activity is about to happen.”

A level three contact allows the police to stop and detain a person when the officer has reasonable suspicion that the person is committing, has committed or is about to commit a crime. A Bronx Criminal Lawyer said this level authorizes an officer to frisk a person for weapons where he reasonably suspects that there is danger of physical injury.

Level four permits the police to take into custody and arrest a person, when the officer has “probable cause to believe that person has committed a crime”.

Based on the foregoing, the Court said that the prosecution is incorrect in its contention that mere presence in the NYCHA building is reason enough to justify a level one stop.

There is nothing in statutes intended to eliminate or relax level one protection in housing projects. No matter the location, luxurious or modest, the police must have “some objective credible reason” to request information about a person’s residency. Officers conducting vertical patrols are not permitted to select individuals for questioning based on presence alone. At a minimum, there must be evidence of prior criminality in the building.

In view of the forgoing, the Court held that the officer’s initial inquiry, based solely on defendant’s presence in the lobby of the building, and the resulting arrest and search were unlawful. Thus, a Manhattan Criminal Lawyer said the defendant’s statements and the physical evidence recovered by the police are the fruits of the poisonous tree and must be suppressed. For these reasons, the Court granted the defendant’s motion to suppress evidence in its entirety.

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